1. When a district court makes findings of fact and conclusions of law, an appellate court
reviews the findings of fact to determine whether they are supported by substantial
competent evidence and whether they are sufficient to support the district court's
conclusions of law. Where the findings are so supported, they will not be disturbed on
appeal even though there may have been contrary evidence which, if believed, would
have supported different findings. An appellate court does not weigh conflicting
evidence, pass on credibility of witnesses, or redetermine questions of fact.

2. Once an easement is created, the owner of the land is the servient tenant and the easement
holder is the dominant tenant. The owner of the servient tenement may make any use
thereof which is consistent with or not calculated to interfere with the exercise of the
easement granted. The character and extent of the rights created by a grant of easement is
determined by construction of the language of the grant and by the extent of the use made
of the dominant tenement at the time of the grant.

3. In Kansas, the law is well settled that where the width, length, and location of an
easement for ingress and egress have been expressly set forth in the instrument, the
easement is specific and definite. The expressed terms of the grant or reservation are
controlling in such a case and considerations of what may be necessary or reasonable to a
present use of the dominant estate are not controlling.

4. Generally, an obstruction or disturbance of an easement is anything which wrongfully
interferes with the privilege to which the owner of the easement is entitled by making its
use less convenient and beneficial than before. To constitute an actionable wrong it must,
however, be of a material character such as will interfere with the reasonable enjoyment
of the easement.

5. A litigant must object to inadequate findings of fact and conclusions of law in order to
give the district court an opportunity to correct them. Where there has been no such
objection, the district court is presumed to have found all facts necessary to support the
judgment.

6. Under the facts of this case, the district court did not err in denying the plaintiff's request
for injunctive relief to enforce its blanket pipeline easement across the defendants'
property.

James P. Colgan, of Colgan Law Firm LLC, of Kansas City, and Gary
A. Nelson, of Leavenworth, for
appellees.

Before PIERRON, P.J., MALONE and BUSER, JJ.

MALONE, J.: Southern Star Central Gas Pipeline, Inc. (Southern Star), appeals the
district court's decision denying its petition for possession, ejectment, and trespass based upon an
alleged encroachment on Southern Star's pipeline easement across land owned by Gordon and
Jennifer Cunning. Southern Star claims the district court erred by not enforcing Southern Star's
easement rights and by not requiring the Cunnings to remove a garage which had been built near
the pipeline. We disagree and affirm.

Southern Star owns and operates interstate natural gas pipelines and related facilities in
five states, including Kansas. The Cunnings own property in Leavenworth County, Kansas (the
property). In July 1959, Southern Star's predecessor was granted an easement across the property
by the people who owned it at that time. The easement was recorded on July 11, 1959, in the
Leavenworth County Register of Deeds office. In 1959 or 1960, Southern Star installed an 8-inch
natural gas pipeline across the property, buried 36 inches below the surface. The pipeline has
been in operation since installation.

Specifically, the easement conveyed to Southern Star a right-of-way on the property:

"to construct, reconstruct, renew, operate, maintain, inspect, alter, replace, repair, and
remove a
pipeline, and for the transportation of gas, oil, petroleum, or any of its products, water and other
substances, and such drips, valves, fittings, meters and other equipment and appurtenances
as may
be necessary or convenient for such operations . . . together with the right of ingress and
egress at
convenient points for such purposes; together with all rights necessary for the convenient
enjoyment of the privileges herein granted." (Emphasis added.)

Southern Star's easement is a blanket easement that does not have specified dimensions as
it crosses the property. In other words, the easement does not specify that it covers a certain
width on each side of the pipeline. The easement simply states that Southern Star is granted a
right-of-way on the property sufficient to operate and maintain its pipeline, together with all
rights necessary for the convenient enjoyment of this privilege.

In 2003, Michael Ronnebaum acquired the property. In August 2003, he obtained a
building permit to construct an oversized two-car garage on the property. At trial, Ronnebaum
testified that he staked the proposed location of the garage and then placed a call to Kansas
One-Call so that the underground pipeline could be marked before he commenced construction.
Kansas One-Call is a business which provides a single point of contact for notifying utility and
pipeline companies of construction or excavation that might affect underground cables or
pipelines. Ronnebaum testified that after he placed the call, someone came out and marked the
location of the pipeline. Ronnebaum testified that the markers indicated the edge of his proposed
garage would be located over the top of the pipeline, so he decided to change the location of the
garage. Ronnebaum ultimately built the garage adjacent to the pipeline, with a 41-inch clearance
between the pipeline and the 27-foot north wall of the garage. Ronnebaum admitted that he never
spoke to a Southern Star representative about building the garage on the property.

The Cunnings purchased the property from Ronnebaum in March 2004. The garage was
already constructed at that time, but it had no electricity. The Cunnings called Kansas One-Call
concerning their anticipated installation of electricity to the garage, and Kansas One-Call notified
Southern Star to mark its pipeline. According to Southern Star, it did not become aware of the
garage until that time.

On February 18, 2005, Southern Star filed a petition against the Cunnings for possession
and ejectment pursuant to K.S.A. 60-1001. The petition sought to enforce Southern Star's
easement rights and demanded the garage be removed because it was within 50 feet of Southern
Star's pipeline. The Cunnings answered and named Ronnebaum as a third-party defendant,
claiming Ronnebaum was liable for the cost of moving the garage if the Cunnings were ordered
to do so. Southern Star later filed an amended petition which alleged the garage interfered with
Southern Star's easement rights because the garage was within 33 feet of the pipeline. The
amended petition also alleged a claim for trespass.

The case proceeded to a bench trial. Gary Hines, an engineer and Southern Star district
manager, testified as an expert regarding industry standards for natural gas pipelines. Hines
testified that the pipeline crossing the property was a high pressure natural gas pipeline with a
maximum allowable operating pressure of 150 pounds. He testified that according to Southern
Star's company policy, an easement width of 33 feet on each side of the pipeline is necessary for
proper maintenance. Hines also testified he had safety concerns about putting someone down in a
ditch to repair the pipeline unless the sides were graded at a 45-degree angle, and he believed that
would not be possible with the garage only 41 inches away. On cross-examination, Hines
testified he was unsure if a backhoe could straddle the pipeline so close to the garage. He
indicated it might be possible to excavate the pipeline with a backhoe off to one side, but he did
not believe this was the most efficient way to excavate. He also admitted that if the excavated
dirt could be moved more than 33 feet away on the working side, then the pipeline could be
excavated with just 41 inches on one side.

Gordon Cunning testified that it would cost about $20,000 to move or rebuild the garage
including the concrete foundation. David Mance, owner of an excavating company, testified as
the Cunnings' first expert witness. Mance testified he could use small, maneuverable equipment
to excavate the pipeline along the north wall of the garage. He indicated it would only take an
additional 30 minutes to move all the dirt off to one side of the garage. He testified there would
be no safety concerns or issues with sloping the sides of a ditch that was only 3 to 4-feet deep.
However, on cross-examination, Mance admitted he had not completed the evaluation and
qualification process required under the federal regulations for excavating a natural gas pipeline.

Edward McClure, Jennifer Cunning's father, was also allowed to testify as an expert
witness. McClure testified that he is an owner and operator of heavy equipment and could dig out
a pipeline such as the one on the Cunnings' property. He testified there would be no safety
concerns with sloping the sides of the ditch. McClure also admitted that he had not completed the
evaluation and qualification process required under federal regulations for excavating a natural
gas pipeline.

After hearing the evidence, the district court found that Southern Star had failed to prove
it was more probably true than not that the garage constituted an unreasonable interference with
Southern Star's easement. The district court also found the encroachment to be slight compared
with the cost of removing the garage. Accordingly, the district court denied Southern Star's claim
for relief and granted judgment in favor of the Cunnings. Southern Star timely appeals.

Southern Star claims the district court erred in failing to define the easement as
encompassing 33 feet on each side of the pipeline. Southern Star also claims the district court
erred in finding the garage did not create an unreasonable interference with Southern Star's
easement and in failing to require relocation of the garage due to safety concerns. Finally,
Southern Star claims the district court erred in balancing the equities after finding the garage
encroached on the easement.

We have a mixed standard of review. When a district court makes findings of fact and
conclusions of law, an appellate court reviews the findings of fact to determine whether they are
supported by substantial competent evidence and whether they are sufficient to support the
district court's conclusions of law. Substantial evidence is such legal and relevant evidence as a
reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v.
Kansas
Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). Where the findings
are so
supported, they will not be disturbed on appeal even though there may have been contrary
evidence which, if believed, would have supported different findings. Haag v. Dry
Basement,
Inc., 11 Kan. App. 2d 649, 653, 732 P.2d 392, rev. denied 241 Kan. 838
(1987). An appellate
court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine
questions of fact. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275
Kan. 763,
775, 69 P.3d 1087 (2003).

A district court's finding that a party did not meet its burden of proof is a negative factual
finding. Such a finding will not be disturbed by an appellate court absent proof of an arbitrary
disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or
prejudice. General Building Contr., LLC v. Board of Shawnee County Comm'rs, 275
Kan. 525,
541, 66 P.3d 873 (2003). Finally, to the extent that resolution of this case requires the
interpretation and legal effect of a written instrument, an appellate court has unlimited
review.
McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005).

The parties do not dispute the fact that Southern Star holds a properly recorded pipeline
easement across the property. Once an easement is created, the owner of the land is the servient
tenant and the easement holder is the dominant tenant. Potter v. Northern Natural Gas
Co., 201
Kan. 528, 530-31, 441 P.2d 802 (1968).

"The owner of the servient tenement may make any use thereof which is
consistent with
or not calculated to interfere with the exercise of the easement granted. [Citations omitted.] The
character and extent of the rights created by a grant of easement is determined by construction of
the language of the grant and by the extent of the use made of the dominant tenement at the time
of the grant. [Citations omitted.]" 201 Kan. at 531.

In Aladdin Petroleum Corporation v. Gold Crown Properties, Inc., 221 Kan.
579, 561
P.2d 818 (1977), the plaintiff conveyed real estate to the defendant subject to an express
right-of-way easement reserved to the plaintiff. The right-of-way easement covered a specific
width,
length, and location. The defendant subsequently constructed carports directly on the easement.
The plaintiff sued for injunctive relief and for an order requiring removal of the carports. The
district court declined to enforce the express provisions of the plaintiff's easement, but instead the
district court granted the plaintiff reasonable access to the property without ordering that the
carports be removed. 221 Kan. at 580-84.

The Kansas Supreme Court reversed and stated:

"The law appears to be settled that where the width, length and location of an
easement
for ingress and egress have been expressly set forth in the instrument the easement is specific and
definite. The expressed terms of the grant or reservation are controlling in such case and
considerations of what may be necessary or reasonable to a present use of the dominant estate are
not controlling." 221 Kan. at 584.

The court held the plaintiff was entitled to a mandatory injunction requiring the removal
of the carports because the right-of-way easement between the parties covered a specific width,
length, and location and the carports were wrongfully constructed on the easement. However, in
discussing what constitutes an obstruction to an easement, the court also stated:

"'An obstruction or disturbance of an easement is anything which wrongfully
interferes
with the privilege to which the owner of the easement is entitled by making its use less
convenient
and beneficial than before. To constitute an actionable wrong it must, however, be of a
material
character such as will interfere with the reasonable enjoyment of the
easement. . . . '" (Emphasis
added.) 221 Kan. at 588 (quoting 28 C.J.S., Easements, § 96, pp. 778-79).

See also Mid-American Pipeline Co. v. Lario Enterprises, Inc., 942 F.2d 1519,
1527 (10th Cir.
1991) (court granted injunction requiring the removal of an asphalt racetrack which had been
built directly over a pipeline easement covering a specific width).

The facts of Aladdin are distinguishable from the facts of this case because
the easement
in Aladdin covered a specific width, length, and location. The easement in this case
is a blanket
easement that does not have specified dimensions as it crosses the Cunnings' property. The
easement only provides that Southern Star is granted a right-of-way on the property sufficient to
operate and maintain its pipeline, together with all rights necessary for the convenient enjoyment
of this privilege. Thus, Southern Star's rights under its blanket easement are less precise and not
as readily enforceable as the plaintiff's easement rights in Aladdin. To prevail in this
case,
Southern Star must establish the encroachment on its easement was of a "material character" as
to interfere with Southern Star's "reasonable enjoyment" of its easement. Aladdin,
221 Kan. at
588.

Turning to Southern Star's specific contentions, Southern Star first claims the district
court erred in failing to define the easement as encompassing 33 feet on each side of the pipeline.
However, the language of the easement only granted Southern Star such rights "as may be
necessary or convenient" for the operation and maintenance of its pipeline. If Southern Star had
wanted its easement to cover a specific width, it could have included that in the written
instrument. Also, it was only Southern Star's "company policy" to require an easement of 33 feet
on each side of the pipeline for proper maintenance. This particular width for a blanket easement
is not specified in any federal or state statute or regulation.

There was nothing requiring the district court to make a particular finding as to how much
square footage Southern Star's easement entailed. The district court examined the language of the
easement and determined the easement's goal could be achieved with the garage in place.
Specifically, the district court found that the pipeline could be attended to, with the garage only
41 inches away. As we will discuss in more detail, this finding was supported by substantial
competent evidence. Accordingly, the district court did not err in failing to define Southern Star's
easement as encompassing 33 feet on each side of the pipeline.

Southern Star also claims the district court erred when it found the garage was not an
unreasonable interference with the easement. There was conflicting testimony on this issue.
Hines testified that a 33-foot clearance on each side of the pipeline was necessary for proper
maintenance. He also had safety concerns about excavating the pipeline so close to the garage,
especially under emergency situations. However, Hines admitted there were methods to excavate
the pipeline close to the garage, especially if the dirt could be moved more than 33 feet away on
the working side.

Mance and McClure indicated the pipeline could be excavated with only a 41-inch
clearance from the garage. Mance testified that a backhoe could operate off to one side of the
pipeline in order to properly perform maintenance and repairs. He indicated the dirt could be
moved more than 33 feet away on the opposite side of the garage, which could be accomplished
in about 30 minutes.

The district court found that Southern Star had failed to prove it was more probably true
than not that the garage constituted an unreasonable interference with Southern Star's easement.
This finding was supported by substantial competent evidence and will not be disturbed on
appeal even though there may have been contrary evidence which, if believed, would have
supported a different finding. Haag, 11 Kan. App. 2d at 653. The weight and credit
to be given
the testimony of the witnesses was for the district court to determine, and this court does not
reweigh conflicting evidence. Morrison, 275 Kan. at 775. The district court did not
arbitrarily
disregard undisputed evidence, and there is no indication the district court's judgment was
influenced by some extrinsic consideration such as bias, passion, or prejudice. General
Building
Contr., LLC, 275 Kan. at 541. Accordingly, the district court did not err in finding the
garage was
not an unreasonable interference with Southern Star's easement.

Southern Star also claims the district court disregarded Hines' testimony about safety
concerns. According to Hines, Southern Star sometimes encounters emergency situations when a
broken pipeline requires immediate repair, and in such an emergency Southern Star's ability to
repair the pipeline would be impaired by having only a 41-inch clearance on one side. Hines also
testified it would be unsafe to put someone into a ditch to make repairs because the ditch could
not be properly graded with the garage only 41 inches away from the pipeline. However, Hines'
testimony was contradicted by Mance and McClure. Specifically, Mance testified that grading
does not become an issue until a ditch is 6 feet deep, and in this case Southern Star's pipeline was
only 36 inches below the surface.

The district court did not fail to consider Southern Star's safety concerns. However, the
district court determined the only issue concerning safety involved the excavation, and district
court found the Cunnings' evidence that the pipeline could be excavated without causing a safety
hazard was more persuasive than Southern Star's evidence. Accordingly, the district court did not
err in failing to require relocation of the garage because of safety concerns.

Finally, Southern Star claims the district court erred in balancing the equities after finding
the garage encroached on the easement. Specifically, Southern Star claims the district court erred
when it found the Cunnings' encroachment on the easement to be slight compared with the cost
of removing the garage. Southern Star claims that once the district court determined the garage
encroached on the easement, it was erroneous for the district court to weigh the inconvenience to
Southern Star in working around the garage with the cost to the Cunnings in moving the garage.

Southern Star relies on Mid-American Pipeline Co. v. Wietharn, 246 Kan.
238, 250-51,
787 P.2d 716 (1990). In Wietharn, a pipeline easement covered a specific width and
stated there
could be no construction on the easement that interfered with the normal operation and
maintenance of the pipelines. Nevertheless, the landowner constructed several buildings on the
easement directly over the pipelines. The pipeline company repeatedly warned the landowner that
the construction was violating the terms of the easement, but the landowner continued to build.
The pipeline company filed a lawsuit seeking injunctive relief. After hearing the evidence, the
district court granted an injunction to halt construction of additional structures on the pipeline
easement but refused to order the landowner to remove the buildings already constructed.
Employing equitable principles, the district court ordered the pipelines under the existing
buildings to be moved at the landowner's expense.

In a four to three decision, the Kansas Supreme Court reversed the district court's
judgment. The Supreme Court rejected the district court's balancing of the equities when the
landowner had acted with knowledge that he was violating the terms of the easement. The court
held the district court erred in ordering the relocation of the pipeline rather than ordering the
removal of the buildings located on the easement. 246 Kan. at 251.

The facts of Wietharn are distinguishable from the facts of this case. The
easement in
Wietharn covered a specific width, as opposed to being a blanket easement, so it was
clear to the
landowner in that case that his buildings were directly on the easement. Also, the landowner in
Wietharn had been repeatedly warned by the pipeline company that he was violating
the terms of
the easement. Here, Ronnebaum had constructive notice of Southern Star's easement because it
was on record with the register of deeds. He also had actual knowledge of the location of the
pipeline. However, he did not have knowledge of how much space Southern Star claimed it
needed in order to access and maintain its pipeline. When Ronnebaum learned that his proposed
location for the garage was directly over the pipeline, he changed the plans so that at least some
clearance would be provided. Also, Ronnebaum obtained a permit from the City of Leavenworth
before he began construction of the garage.

The testimony was somewhat disputed as to whether Ronnebaum called Kansas One-Call
when he began construction of the garage. This issue was significant because, had the call been
made, Kansas One-Call would have notified Southern Star to mark its pipeline. This would have
provided Southern Star the opportunity to inform Ronnebaum about its 33-foot clearance policy
before he built the garage. Ronnebaum testified he made the call and that "someone" came out
and marked the location of the pipeline. However, a witness for Kansas One-Call testified that
the company never received a phone call from Ronnebaum.

The district court never resolved this factual dispute, and the district court made no
specific findings as to whether Ronnebaum acted with knowledge that he was violating the terms
of the easement when he built the garage. However, Southern Star did not object to the adequacy
of the district court's findings in this regard. A litigant must object to inadequate findings of fact
and conclusions of law in order to give the district court an opportunity to correct them. Where
there has been no such objection, the district court is presumed to have found all facts necessary
to support the judgment. Gilkey v. State, 31 Kan. App. 2d 77, 77-78, 60 P.3d 351,
rev. denied
275 Kan. 963 (2003) (quoting Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706,
952 P.2d 1286
[1998]).

Although it was unresolved whether Ronnebaum acted with knowledge that he was
violating the terms of the easement when he built the garage, it is undisputed that the Cunnings
were completely innocent of any wrongdoing. The garage was already constructed when the
Cunnings purchased the property from Ronnebaum. These facts distinguish the present case from
Wietharn, where the court ruled it was improper to balance equities.

In any event, the ultimate issue for the district court to determine was whether the
encroachment on Southern Star's easement was of a "material character" as to interfere with
Southern Star's "reasonable enjoyment" of its easement. See Aladdin, 221 Kan. at
588. This
appears to be what the district court was doing rather than balancing the equities. The location of
the garage only affected 27 feet of Southern Star's pipeline. Although the district court
acknowledged the garage caused some inconvenience, the district court concluded that Southern
Star had failed to prove the garage constituted an unreasonable interference with Southern Star's
easement. The evidence presented at trial was sufficient to support this conclusion.

In summary, Southern Star's blanket easement did not expressly define the amount of
space Southern Star needed to adequately maintain its pipeline. There was evidence that
Southern Star could use means other than its standard practices in order to access and work on
the pipeline. The district court weighed the evidence and found no material interference with the
easement. This was a judgment for the district court to make based upon the evidence presented,
and in this case the district court's decision was supported by substantial competent evidence.
This does not mean that a 41-inch clearance from a natural gas pipeline would be considered
adequate in every case. Under the facts of this case, however, we conclude the district court did
not err in denying Southern Star's request for injunctive relief.